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Orillac v. Solomon8/23/2000
Application for rehearing may be filed within the delay allowed by art. 2166, La. C.C.P.
This appeal arises from an automobile accident in which Defendant, Cleo Solomon, was solely at fault in injuring Plaintiff, Patricia Orillac (hereinafter Ms. Orillac) , and in damaging the vehicle driven by Ms. Orillac, which was owned by her father, Plaintiff, Dr. Rogelio Orillac. The trial court awarded Ms. Orillac $45,000 in general damages and $4,638 in medical expenses. Dr. Orillac was awarded $5,000 in property damage for the depreciation of his car. Defendants, Mr. Solomon and his insurer, Reliance Insurance Company, appeal the judgment as excessive. For the reasons stated herein, we find that the general damages awarded to Ms. Orillac were excessive and amend the trial court's judgment, and, as amended, we affirm.
FACTS
On May 1, 1997, in Monroe, Louisiana, a vehicle driven by Ms. Orillac, and owned by her father, Dr. Rogelio Orillac, was struck by a left-turning vehicle operated by Mr. Solomon, and insured by Reliance Insurance Company. The resulting lawsuit was tried in October 1999. The parties stipulated to Mr. Solomon's liability, leaving only the issue of damages, Dr. Orillac's property damage and Ms. Orillac's personal injury damages, to be determined by the trial court.
The deposition and records of Dr. Douglas Brown, the orthopaedist who treated Ms. Orillac, were introduced into evidence without objection. In his deposition testimony, Dr. Brown indicated that he first examined Ms. Orillac on May 2, 1997, the day following the accident. At that time, she complained of headaches, but admitted she had a history of migraine headaches. There was no restriction of movement in Ms. Orillac's neck; her cranial nerves were normal; and her shoulder movement was unrestricted. Ms. Orillac could walk normally and her reflexes were fine, but she did have some tenderness in her lower back along the middle of the right lumbar spine. X-rays of Ms. Orillac's cervical and lumbar spine appeared to be normal, although there was a "questionable defect" in a section of the L3 vertebra on the right side which corresponded to the area where she had pain.
Several weeks later, on May 12, 1997, Ms. Orillac returned to Dr. Brown with complaints of back pain. She also complained for the first time of pain in her left knee and stated that she felt she had struck her knee in the accident on the drivers' side car door or dashboard. Examination revealed nothing specific. Mrs. Newman had tenderness in the joint line on the inside of her knee that suggested a possible cartilage injury . With respect to her back, Dr. Brown found pain when he percussed Ms. Orillac's spine, but no neurologic defect. Dr. Brown ordered an MRI of Ms. Orillac's lumbar spine, as well as her knee, and told her to return once those were completed. Ms. Orillac returned on July 21, 1997, and the MRI of her knee showed a small tear in the back of the inside cartilage (medial meniscus). The location corresponded to the area where Ms. Orillac had pain. With respect to her back, the MRI showed "just some minimal bulging" of two discs and "some very slight encroachment" between the L5 and S1 vertebra that would impinge on the S1 nerve root.
After reviewing these findings, Dr. Brown informed Ms. Orillac that surgery was not warranted, and he put her on an exercise program. He advised her to "back off" on gymnastic events and maneuvers until she was completely well.
Dr. Brown did not see Ms. Orillac again until May 1998, at which time she informed Dr. Brown that physical activity such as cheerleading or aerobic tumbling gave her back pain. Ms. Orillac walked smoothly, however, and she could
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